Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. HC 6348
Bamattre-Manoukian, ACTING P.J.
Petitioner Joseph Anthony Anaya has filed a petition for writ of habeas corpus challenging the refusal of the Department of Corrections and Rehabilitation (the Department) to grant him favorable work-performance points toward his classification score for periods in which he was eligible for but unassigned to a work program. The trial court determined that petitioner is not entitled under the current regulations to the favorable points he seeks, and therefore denied the habeas petition he filed in that court. We agree with the trial court, and therefore we will deny the petition filed here.
BACKGROUND
Petitioner is in the custody of the Department, serving a sentence of 35 years to life under the Three Strikes law, as a result of his 1997 conviction for voluntary manslaughter (Pen. Code, § 192, subd. (a)).
On April 23, 2004, petitioner was transferred to Folsom State Prison (Folsom), where his work status was classified as unassigned. On December 9, 2004, he was assigned to a porter/tier tender position, and was eligible to earn favorable points for average or above average work performance. However, in April 2005, he was placed in an administrative segregation unit for allegedly participating in gang violence, and he lost his work assignment. After completing an investigation, Folsom officials concluded that there was insufficient information to charge petitioner with a disciplinary rule violation. They recommended him for a non-adverse transfer to another institution where he could have a fresh start.
On June 16, 2005, petitioner was transferred from Folsom to the Correctional Training Facility at Soledad (Soledad), where his work status was again classified as unassigned. He maintained his work group A-1 status following this non-adverse transfer for purposes of earning “ ‘S’ time.” (Cal. Code Regs., tit. 15, § 3045.3, subd. (a) [“ ‘S’ time” is time designated as an authorized absence from an inmate’s work/training assignment], 3044, subd. (b)(2) [work group A-1 is full-time work/training assignment].) On November 14, 2005, and again on June 22, 2006, petitioner was reviewed by Soledad’s unit classification committee (the committee). Each time, petitioner received a two-point reduction in his classification score for having no serious disciplinary actions for six months. However, he did not receive any reduction in his classification score for positive work performance because he remained unassigned. Although petitioner’s classification score was increased when he was found guilty of possessing inmate-manufactured alcohol on August 27, 2006, the committee reduced his classification score by four points on June 24, 2008, when he again had two six-month periods of no serious disciplinary actions.
All section references are to title 15 of the California Code of Regulations unless otherwise specified.
In the meantime, on February 24, 2008, because he had still not been assigned a job, petitioner submitted an inmate appeal challenging his unassigned work-group status and contending that he should receive favorable work-performance points toward his classification score pursuant to In re Player (2007) 146 Cal.App.4th 813 (Player). On March 25, 2008, Soledad officials provided petitioner with a second level review response which states in pertinent part: “At this time the [Department] has not made any policy changes regarding the In re Player decision. Therefore, [section] 3375.4(a)(3)(B) is the authority in your case which states in part... ‘Favorable points shall not be granted for average or above average work performance for inmates who are not assigned to a program.’ You are not entitled to a further reduction in favorable points at this time.”
On July 21, 2008, the Department issued its director’s level review decision, denying petitioner’s further appeal. That decision states in pertinent part: “It appears to the Director’s Level of Review (DLR) that [petitioner] has confused work time credits with CS [classification score] credits. The SLR [second level review] and DLR agree with [petitioner] that as an unassigned WG/PG [work group/privilege group] ‘A-1/A’ status inmate [petitioner] warrants all credits earned by assigned inmates pursuant to [section] 3043.6(c)(2). There is no indication that [petitioner] is not receiving full credits. [¶] The DLR agrees with [Soledad] that [petitioner] has not earned a reduction of his CS through favorable points for average or above average work. A review of the documentation fails to support [petitioner’s] statement that he should be provided a reduction of his CS for a non-existent assignment. [Section] 3375.4(a) stipulates that an inmate may receive a reduction of his CS for each six month period of time he has average to above average work performance. The granting of favorable credits is not automatic and received by all WG/PG ‘A-1/A’ inmates. Numerous inmates in the WG/PG ‘A-1/A’ category do not receive a point reduction based upon their failure to qualify through their work ethic. [¶] The DLR has determined that [petitioner] is receiving credit towards his Minimum Eligible Parole Date based upon his WG/PG ‘A-1/A]’ status. His CS has been properly calculated under present [Department] regulations.”
On September 18, 2008, petitioner filed a petition for writ of habeas corpus in Monterey County Superior Court. After receiving and considering an informal response, the court denied the petition on February 10, 2009, stating: “In Player, the court held a prisoner who is deemed to be earning sentence-reducing work time credit on ‘S’ Time status should also qualify for favorable behavioral points to reduce the prisoner’s classification score under [section] 3375.4(a)(3)(B), which provides ‘[f]avorable points shall not be granted for average or above average performance for inmates who are not assigned to a program.’ At the time, the version of the Department Operations Manual then in effect regarding ‘S’ Time provided in relevant part, ‘[r]ecorded “S” time shall be considered the same as time worked for purposes of credit earning.’ [Citation.] (Player, supra, at 245, fn. 2.) [¶] The Court finds Player not applicable here because the relevant rules and regulations governing ‘S’ Time have changed; they no longer treat ‘S’ Time as equivalent to time worked for purposes of credit earning. Both Section 3045.3(a)... and Section 53130.9 of the Department Operations Manual provide: ‘ “S” time shall be noted on timekeeping documents for an authorized absence from the inmate’s work/training assignment by order of the prison administration. The inmate shall receive sentence-reducing credit commensurate with their designated work group. Inmates who are removed from their work/training assignment for the reasons noted below, shall retain their existing work/training group status unless otherwise impacted by a classification committee or disciplinary action.’ [¶] In light of these changes, and the express language of Section 3375.4(a)(3)(B), prohibiting the granting of favorable behavioral points ‘for inmates who are not assigned to a program,’ the [Department] is not obligated to follow Player. [¶] Additionally, the Court finds persuasive Respondent’s point that because a classification score is evaluated each year to determine an inmate’s security risk and proper housing, it is not arbitrary and capricious to require inmates to have objective evidence of average or above average performance at a work assignment in order for [the Department] to evaluate whether the inmate poses a lesser security risk. This is demonstrated through the ability to cooperate with supervisors and fellow inmates, the ability to follow instructions, perform tasks diligently and safely, and to comply with program rules and regulations.”
On March 2, 2009, petitioner filed his petition for writ of habeas corpus in this court in propria persona (in pro per). In it petitioner contends that he “disagrees respectfully with the Superior Court’s decision.” “Denying [petitioner’s] petition or denying [him] any favorable points would deny him equal opportunity and... equal protection....” “The [Department’s] and The Superior Court[’s] decision to deny [petitioner] work performance credits is arbitrary and capricious.”
The Attorney General filed an informal response at our request. In it the Attorney General contends that it is not arbitrary or capricious for the Department to require actual program performance before using program performance behavior as a basis for reducing an inmate’s security classification, which is the determination of an inmate’s housing placement and risk to institutional security. The Attorney General further contends that, because the Player court relied in part on the 2000 version of the Department’s operational manual that has since been revised, Player no longer controls. Lastly, the Attorney General contends that the Player court incorrectly equated “S” Time with favorable classification score points.
Petitioner’s informal reply filed in pro per contends that the Attorney General misunderstands his argument. “[H]e is essentially deemed to be working full time since he is earning full work time credits at A1A unassigned under [section] 3043.6(a)(2). Under Player it would seem that Petitioner should also be able to earn favorable performance points under [section] 3375.4, when being unassigned is due to [no] fault of his own.”
On April 30, 2009, we issued an order to show cause and appointed counsel to represent petitioner. The return to the petition, filed June 8, 2009, contains essentially the same contentions as does the informal response. Petitioner’s traverse, filed July 9, 2009, contends that the Player court did not improperly equate “S” Time with favorable classification score points, and that the regulatory revisions since Player did not undermine the holding or the relevance of the Player decision.
On July 20, 2009, we requested supplemental briefing addressing the applicability of In re Jenkins (2009) 175 Cal.App.4th 300 (Jenkins), petition for review pending (petn. filed Aug. 5, 2009, S175242), to the facts of this case. In Jenkins, the appellate court concluded that “the regulation restricting work/school performance points to those inmates who are actually participating in a qualifying program and are performing at average or above-average level in that program has a rational basis.” (Id. at p. 322.) The Attorney General’s brief argues that the Jenkins court properly determined that work performance points are not equivalent to work-eligible points, and the court appropriately deferred to the Department in concluding that its classification scheme is not arbitrary. Petitioner’s brief argues that the Jenkins court improperly interpreted the Department’s section 3375.4(a)(3)(B) to apply to prisoners who had been assigned a job but later lost that assignment through no fault of their own. “[T]his interpretation is contrary to the plain language and meaning of the regulation.”
The Attorney General’s request to take judicial notice of Jenkins is denied as moot.
DISCUSSION
“The Legislature has given the Director of the Department... broad authority for the discipline and classification of persons confined in state prisons. [Citations.] This authority includes the mandate to promulgate regulations governing administration, classification and discipline.” (In re Lusero (1992) 4 Cal.App.4th 572, 575 (Lusero); In re Scott (2003) 113 Cal.App.4th 38, 44.) “Exercising that authority, the director promulgated a detailed classification scheme for prisoners. (Cal.Code Regs., tit. 15, §§ 3375-3378.)” (Lusero, supra, 4 Cal.App.4th at p. 575.)
Under the Department’s regulations, every person committed to state prison is given a classification score following an individualized examination and study. (In re Wilson (1988) 202 Cal.App.3d 661, 665 (Wilson); § 3375, subd. (a).) “Prisoner classification scores play a significant role in determining where, within the state’s many prison facilities, a prisoner will be sent to serve his/her term of incarceration. [Citation.] As a general rule, a prisoner’s classification score is directly proportional to the level of security needed to house the inmate. For example, prisoners with high classification scores will be sent to the prisons with higher levels of security. [Citations.]” (In re Richards (1993) 16 Cal.App.4th 93, 95, fn. 1; Player, supra, 146 Cal.App.4th at p. 824.)
Each inmate’s classification score is reviewed at least annually. (See § 3375.4, subd. (a).) “For each six-month period since the last review with no serious disciplinary(s),” the inmate is entitled to the reduction of his or her classification score by two points. (Id. at subd. (a)(2).) The inmate is also entitled to the reduction of his or her classification score by two points “[f]or each six-month period with an average or above average performance in work, school or vocational program.” (Id. at subd. (a)(3).) “The policy behind the work/training incentive program is ‘to instill good work habits, teach marketable skills, improve [inmates’] reintegration into society and seek self-sufficiency for the prisons.’ [Citation.]” (In re Carter (1988) 199 Cal.App.3d 271, 275 (Carter).) Therefore, the reduction is not allowed for “an average or above average performance for inmates who are not assigned to a program.” (§ 3375.4, subd. (a)(3)(B).)
It is important to recognize that “worktime credits, which reduce an inmate’s sentence, are different from favorable points/credits for average or above [average] performance in that work.” (Player, supra, 146 Cal.App.4th at p. 827.) An inmate is entitled to some worktime credits even if he does not actually work or participate in a program, as long as the inmate is “willing to participate in a full-time credit qualifying assignment.” (Pen. Code, § 2933, subd. (a).) Therefore, when an inmate’s work-qualifying status is disrupted or changed to “unassigned” based on circumstances and the conduct of the Department which was not within the inmate’s control, pursuant to the relevant regulations of the Department and case law, the Department cannot deny the inmate his worktime credits for that time. (§ 3043.6, subd. (c)(2), 3045.3; Carter, supra, 199 Cal.App.3d at p. 276.) For example, an inmate remains eligible to earn worktime credits when the inmate “is removed from a program for adverse reasons and is subsequently exonerated of the charges.” (§ 3043.6, subd. (c)(2).)
Here, petitioner’s classification was reviewed on November 14, 2005, and June 22, 2006. Each time the committee awarded him a two-point reduction in his classification score for having no serious disciplinary actions for six months. However, he did not receive any reductions in his classification score for positive work performance because he remained unassigned. That is, he was not actually working. In his administrative appeal, the Department explained to petitioner that he was entitled to and was receiving worktime credits toward the reduction in his sentence, but he was not entitled to and would not receive points towards the reduction in his classification score unless and until he was qualified to earn them by demonstrating a positive work performance.
We must uphold the Department’s classification decisions as long as they are supported by “ ‘some evidence.’ ” (Wilson, supra, 202 Cal.App.3d at p. 666; Lusero, supra, 4 Cal.App.4th at p. 575.) However, where the Department’s decision “ ‘is clearly arbitrary or capricious or has no reasonable basis, courts should not hesitate to reject it’ [citation].” (Lusero, supra, 4 Cal.App.4th at p. 575; Player, supra, 146 Cal.App.4th at p. 824.)
In Player, the inmate had been denied favorable points for average or above-average work performance for three six-month periods on three different annual classification reviews because he was not participating in a work or training assignment at the beginning of each of the challenged periods, although his nonparticipation was not his fault. (Player, supra, 146 Cal.App.4th at pp. 824-825.) Under its construction of section 3375.4, subdivision (a), the Department would not grant an inmate favorable points for a six-month period if, for any reason, the inmate was not in a qualifying work assignment at the inception of that period. (Player, supra, 146 Cal.App.4th at p. 826.) The Court of Appeal held in part that the Department’s construction of the regulation was “unreasonable and unfair” because the construction allowed favorable performance points for the six-month period in which an inmate’s work assignment was interrupted due to no fault of his own, but did not allow favorable points for the six-month period in which the nonassignment continued. (Id. at p. 829.) The court also held that it was not “logical or fair” to deny the inmate favorable work-performance points for each six-month period at issue when the Department was required by case law and the applicable regulations to grant the inmate worktime credits for the period as “S” time. (Id. at pp. 827-828.)
In Jenkins, the Department denied the inmate two favorable work/school performance points because he was not assigned to a work, school, or vocational program for more than half of the relevant review period. The appellate court concluded that the Department’s decision was not arbitrary, capricious, or irrational. (Jenkins, supra, 175 Cal.App.4th at p. 315.) In doing so, the court agreed with the Department’s argument that “it is not arbitrary or capricious for the department to treat work/school performance points differently than worktime credits.” (Id. at p. 318.) “ ‘[A]ctual performance in a program provides [the department] a basis to evaluate whether an inmate is a lesser security risk,’ justifying a reduction in the inmate’s classification score, and ‘reducing a classification score without documented evidence of adequate performance is speculative.’ Worktime credits, on the other hand, serve as an incentive for inmates to participate in rehabilitative programs, and documented evidence of actual performance in those programs is not necessary for worktime credits to serve their intended purpose.” (Ibid.)
In this case, we agree with the Department’s determination that petitioner was entitled to worktime credits for the review periods at issue, but he was not entitled to receive points towards the reduction in his classification score for average or above average work performance because he was “unassigned” to a program during those periods. “Because worktime credits are earned for the mere willingness to participate in a credit qualifying program, they do not depend on actual assignment to such a program and they do not reward actual performance in such a program.” (Jenkins, supra, 175 Cal.App.4th at p. 319.) “Work/school performance points applied in determining an inmate’s classification score are entirely different. Under the governing regulations, such points are awarded for ‘average or above average performance in [a] work, school or vocational program’ and they ‘shall not be granted... for inmates who are not assigned to a program.’ [Citations.] Thus, in contrast to worktime credits, work/school performance points do depend on actual assignment to a qualifying program and do reward actual performance in such a program, namely performance that is average or better.” (Id. at pp. 319-320.)
We also find, as did the Jenkins court and the trial court here, that the distinction between worktime credits and work/school performance points is not arbitrary or capricious. As the trial court stated, “it is not arbitrary and capricious to require inmates to have objective evidence of average or above average performance at a work assignment in order for [the Department] to evaluate whether the inmate poses a lesser security risk. This is demonstrated through the ability to cooperate with supervisors and fellow inmates, the ability to follow instructions, perform tasks diligently and safely, and to comply with program rules and regulations.” “Thus, there is a rational basis for the department’s regulation that denies work/school performance points to inmates who are not assigned to a program, regardless of whether the lack of an assignment is attributable to the inmate or to the department.” (Jenkins, supra, 175 Cal.App.4th at p. 320.)
Petitioner contends that the proper interpretation of the Department’s regulations would treat him the same as inmates who are actually assigned to a program, rather than the same as inmates who have never been assigned to a program, because he had been assigned a job but then lost the assignment through no fault of his own. However, the Department could rationally determine that current or actual average or above-average performance in a work, school, or vocational program, rather than a history or a demonstration of past average or above-average performance, is necessary to show that an inmate continues to pose a reduced security risk such that his security classification score should be reduced. Stated another way, just because the Department decided an inmate should get a lower classification score for demonstrating actual average or above-average work performance in an assigned program during one review period does not mean the Department is bound to decide that the same inmate poses a lesser security risk in a later review period because of the inmate’s past work performance in that assigned program.
As we conclude that the Department rationally determined that petitioner was not entitled to the reduction in his classification score allowed inmates assigned to a work program who demonstrate average or above-average work performance, because petitioner was unassigned to a program during the relevant review periods, petitioner is not entitled to the relief he seeks.
DISPOSITION
The petition for writ of habeas corpus is denied.
WE CONCUR: MIHARA, J., MCADAMS, J.